(iii) a determination of probable cause for detention has been made pursuant to subsection (b).

(b)

A determination of probable cause for detention shall be made by an appropriate judicial officer. The appropriate officer shall consider any information presented by the police, whether or not known at the time of arrest. The police shall present the information under oath or affirmation, or under the pains and penalties of perjury. The police may present the information orally, in person or by any other means, or in writing. If presented in writing, the information may be transmitted to the appropriate judicial officer by facsimile transmission or by electronic mail or by such other electronic means as may be found acceptable by the court. The determination of probable cause for detention shall be an ex parte proceeding. The person arrested has no right to appear, either in person or by counsel.

(c)

Where subsection (a) requires a determination of probable cause for detention, the police shall present the information necessary to obtain such determination to the appropriate judicial officer as soon as reasonably possible after the arrest, but no later than twenty-four hours after arrest, absent exigent circumstances.

(d)

The judicial officer shall promptly reduce to writing his or her determination as to probable cause and notify the police. A copy of the written determination shall be transmitted to the police, by facsimile transmission or by other means, as soon as possible.

(e)

The judicial officer shall apply the same standard in making the determination of probable cause for detention as in deciding whether an arrest warrant should issue. If the judicial officer determines that there is probable cause to believe the person arrested committed an offense, the judicial officer shall make a written determination of his or her decision which shall be filed with the record of the case together with all the written information submitted by the police.

(f)

If there is not probable cause to believe that the person arrested committed an offense, the judicial officer shall order the person's prompt release from custody. The order and a written determination of the judicial officer shall be filed in the District Court having jurisdiction over the location of the arrest, together with all the written information submitted by the police. These documents shall be filed separately from the records of criminal and delinquency cases, but shall be public records.

Reporter's notes

Rule 3.1 was added in 2004 to implement the requirements described by the Supreme Judicial Court in Jenkins v. Chief Justice of the District Court Department, 416 Mass. 221 (1993), dealing with the topic of obtaining a judicial determination of probable cause for persons held in custody after a warrantless arrest. It is based on the procedure promulgated in 1994 by Trial Court Rule XI. The only major substantive change that Rule 3.1 makes in the procedure dictated by Trial Court Rule XI is in the standard to use in determining if the custody of the individual is lawful. Trial Court Rule XI directed the "judicial officer [to determine whether] ... there is probable cause to believe that such arrestee committed one or more of the offenses for which he or she was arrested." Rule 3.1 directs the judicial officer to determine if "there is probable cause to believe the person arrested committed an offense." The language of Rule 3.1 more accurately focuses on the appropriate issue that is crucial to the question of the legality of an individual's detention prior to being brought to court.

Subdivision (a)

In Jenkins, the Court held that Article 14 of the Declaration of Rights requires the police to obtain a judicial determination of probable cause as soon as reasonably possible after they have made a warrantless arrest, which in the usual circumstances means no more than twenty-four hours. This subdivision identifies the only four exceptions to the police following the procedure that the balance of Rule 3.1 establishes. One is when the arrestee will not be held more than twenty-four hours. For example, if the police have arrested someone who is going to be bailed at the police station within twenty-hours, Rule 3.1 is not applicable. Another is when the arrest was based on process issued by a judicial officer, such as an arrest warrant, or when process exists which authorizes the detention of an arrestee on another charge. In the former circumstance, the police are merely executing a judicial order rather than making an independent judgment to deprive someone of their liberty. In the latter circumstance, where for example the police arrest someone without a warrant and then discover that there is a pre-existing outstanding warrant for the arrestee, there is already judicial authorization to deprive the arrestee of his or her liberty. The third is when a complaint charging the arrestee with a crime has already been authorized under Rule 3(g), which independently requires a judicial officer to make the same sort of probable cause determination as Rule 3.1 contemplates. Last is when exigent circumstances exist which make it not possible to obtain judicial approval for an extended deprivation of the arrestee's liberty.

Subdivision (b)

This subsection describes the procedure for a determination of probable cause for detention after a warrantless arrest. It requires the police to present the information that supports a deprivation of an arrestee's liberty to an appropriate judicial officer. These officials include judges and those individuals in the clerk-magistrate's office who are empowered to authorize complaints. See Reporters' Notes to Rule 3(g); G.L. c. 218 § 33 . The Court held in Jenkins, 416 Mass. at 337-38 that:

The police may present the appropriate judicial officer with the information providing probable cause for the arrestee's detention in writing or orally. This subdivision contemplates that the medium of providing the information be as flexible as possible. Physical submission of a written report, faxed copies or e-mail are all appropriate, as are telephone conversations. No matter how the police submit the information, however, it should be sworn to under oath or affirmation. The arrestee has no right to appear or participate at this proceeding, either in person or through counsel. See Jenkins, 416 Mass. at 244-45.

Subdivision (c)

This subsection directs the police to present the information justifying the detention of an arrestee's liberty within twenty-four hours of the arrest, unless there are exigent circumstances. The exception for exigent circumstances addresses situations such as communication failures and natural disasters and not exigencies that relate solely to the investigative needs of the police.

Subdivision (d)

This subsection incorporates essentially the same requirement for reducing the results of a determination of probable cause for detention to writing and transmitting it to the police as contained in Trial Court Rule XI(e).

Subdivision (e)

This subdivision deals with the standard that governs the determination of probable cause for detention and the consequence of an affirmative finding. As to the first of these issues, the subdivision addresses two questions: what the standard should be and the issues to which the standard should be applied. The Court in Jenkins held that the Declaration of Rights requires a postarrest determination of probable cause to be "governed by the same legal standards as apply to the issuance of a warrant." Jenkins, 416 Mass. at 239. Rule 3.1 follows Trial Court Rule XI (b), in adopting this same familiar standard as the measure of whether further detention of an arrestee is warranted. However, the subdivision differs from Trial Court Rule XI (b) in the question of what issues must meet this standard. The Trial Court Rule focused on whether the individual committed one or more of the offenses for which he or she was arrested. This subdivision focuses on whether there is probable cause to believe individual committed any offense.

The procedure that Rule 3.1 addresses is directed to the question of probable cause for the arrestee's detention, not whether probable cause existed to justify the person's arrest. Given the nature of the determination, the legality of the arrestee's detention should not depend on the ability of the police accurately to identify the precise offense for which the person should be held. For example, it is sometimes the case that police with probable cause to arrest someone for a particular crime put down the wrong offense on the documents they fill out afterwards. Under the language of Trial Court Rule XI (d), such a person would have to be released despite clear probable cause to charge him or her with the correct crime. Under Rule 3.1, the police could detain such an individual and charge him or her with the appropriate offense. The approach that Rule 3.1 takes to this issue is similar to the rules of other jurisdictions. See Fla. R. Crim. Pro., Rule 3.133(a)(3); Me. R. Crim. Pro., Rule 5(d); Minn. R. Crim. Pro., Rule 4.03.

The subdivision also addresses the issue of the consequence of a determination that there exists probable cause for detention. If probable cause exists, a written finding together with the supporting documents are to be filed with the record of the case. A defendant does not have the right to have the probable cause determination reviewed at arraignment. By the time a defendant subject to the process described in Rule 3.1 is arraigned, a judicial officer not only will have made a determination of probable cause for detention, but also a determination pursuant to Rule 3(g) that probable cause exists for each of the offenses with which the defendant has been charged. There is no need for a judge at arraignment routinely to reconsider the matter of probable cause.

Subdivision (f)

This subdivision deals with the issue of the consequence of a determination that there does not exist probable cause for detention. It is essentially the same in this regard as Trial Court Rule XI (e)(3).